What Qualifies as a Duly Registered Deed for a 5-Year Adverse Possession Claim?

Texas 5-Year Adverse Possession Claims

The legal doctrine of adverse possession allows someone who is not the record title holder of real property to assert ownership of that property. Adverse possession prioritizes the use and cultivation of real estate as a public policy in Texas. The basic elements of an adverse possession claim in Texas are:

(1) actual possession of the disputed property, (2) that is open and notorious, (3) peaceable, (4) under a claim of right; (5) that is consistently and continuously adverse or hostile to the claim of another person for the duration of the relevant statutory period. Estrada v. Cheshire, 470 S.W.3d 109, 123 (Tex. App.—Houston [1st Dist.] 2015, pet. denied).

The Civil Practices and Remedies Code categorizes adverse possession claims into 3-year, 5-year, 10-year, and 25-year statutes of limitations periods for a title holder to retake possession of their property and eject an adverse claimant. Tex. Civ. Prac. & Rem. Code §16.024 - §16.027. The shorter the limitations period, the higher the bar that a claimant must jump to meet adverse possession requirements.

The 5-Year Claim and the Duly Registered Deed

According to Tex. Civ. Prac. & Rem. Code § 16.025, a 5-year adverse possession claim requires:

(1) Cultivation, use, or enjoyment of the property;
(2) Payment of applicable taxes on the property; and
(3) Claiming the property under a duly registered deed.

Exactly what qualifies as a duly registered deed is the next question. Texas courts have held that the function of a deed is to give notice of the adverse claim, and that a void deed is as competent to provide notice as a valid one. Neal v. Pickett, 280 S.W. 748 (Tex. Comm'n App.1926, holding approved). In addition, an instrument that purports to convey the land through naked title (legal interest with no right of possession) can also be sufficient notice for a 5-year adverse possession claim. Rosborough v. Cook, 108 Tex. 364, 194 S.W. 131 (1917). Either fulfills the 5-year requirement.

However, an instrument that purports to transfer property, but is clearly invalid, will not qualify. This is often called a “void on its face” deed. A sufficient 5-year deed may eventually be considered void due to defect, but a deed that clearly cannot convey ownership rights will never be sufficient to satisfy the five-year elements. Neal v. Pickett, 280 S.W. 748.


Unlike the 3-year statute, a 5-year adverse possession claim does not require color of title to be successful. The deed does not necessarily need to be valid, but it must function to give notice of a possible adverse possession claim on the property. Defending or prosecuting an adverse possession claim is complex, so it is prudent to seek the services of a qualified real estate attorney.

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